It's easy to focus on DMCA abuse, but YouTube—really the Web—wouldn't exist as is without it.

Video-sharing site YouTube has come a long way since co-founder Jawed Karim uploaded the site's first video exactly 10 years ago today. The unremarkable-turned-remarkable clip focuses on elephants.

"The cool thing about these guys is that they have really, really long trunks. And that's pretty much all there is to say," says Karim.

The footage lasts 19 seconds; today, "Me at the zoo" boasts a million views for every one of those seconds. In retrospect, Karim's throwaway video sparked a true watershed moment, the beginning of a technological and cultural phenomena that nobody could have envisioned. YouTube, which debuted publicly days after that first upload, has since evolved (or devolved) to host everything from cat videos to movies to music videos. DIY videos, news clips, and political statements are made by both professionals and amateurs alike—and all are available on a global scale. The site famously has more than a billion users and adds 300 hours of new video every minute.

But as important as Karim's small step was, YouTube, its competitors, and the Web as we know it likely wouldn't be here today (or would look awfully different) if it wasn't for another act—this one from Congress way back in 1998, when it passed legislation called the Digital Millennium Copyright Act (DMCA).

DMCA isn't just about cat videos

Nobody at the time the DMCA was enacted knew exactly what the Internet would become. In some sense, the law was a matter of prediction. "In Congress' mind, this is what it took to update copyright law for the new millennium," Eric Goldman, a Santa Clara University School of Law professor, told Ars.

Then-President Bill Clinton signed H.R. 2281 on October 28, 1998. In a signing statement, Clinton said the Act would balance "the interests of both copyright owners and users." The measure was an outgrowth of international copyright treaties, called the WIPO Internet Treaties, that the United States was participating in. But perhaps more importantly, the DMCA came amid intense lobbying from the entertainment industry. Given the rise of the Internet and devices allowing a la carte entertainment consumption, content creators feared their intellectual property would be undermined by emerging technology. That's why the DMCA makes it illegal, for example, to market technology enabling the unscrambling of the encryption on DVDs.

"Through enactment of the Digital Millennium Copyright Act, we have done our best to protect from digital piracy the copyright industries that comprise the leading export of the United States," Clinton said.

One critical feature of the DMCA over time has been that it protects Internet companies from copyright liability as long as they remove or "take down" infringing user-generated content at the request of a rights holder. Companies that comply are granted "safe harbor." The DMCA, in conjunction with other laws like the Communications Decency Act (CDA), freed up Internet companies from worrying about user-generated content—and thus gave birth to a wide swath of today's Internet services. In fact, it's hard to see how YouTube or the Web at large would have gotten off the ground if sites were legally responsible for all of their user-generated content.

"Without the legal protections provided by Congress, YouTube would not exist in its current form and probably would not exist at all," Goldman said. "We can trace billions of dollars in activity that can be attached to the safe harbor."

Imagine Twitter, Goldman said, if it had to screen tweets "before they go public." This alternate universe idea isn't new. However, the DMCA's success is worth pointing out on YouTube's birthday because largely we associate the DMCA with something else entirely—abuses.

"The safe harbor, even if it was full of holes, turned out to spur enormous innovation in the Internet industry," Mark Lemley, the director of the Stanford Program in Law, Science, and Technology at Stanford University, told Ars.

Anupam Chander, a law professor at the University of California, at Davis, goes one step further. When considering how vital the DMCA is and was in a paper titled "How the Law Made Silicon Valley" (PDF), Chander said Silicon Valley might have lost innovation entirely and become "the valley of death" without the DMCA.

Imagine the boardroom in a Silicon Valley venture capital firm, circa 2005. A start-up less than a year old has already attracted millions of users. Now that start-up, which is bleeding money, needs an infusion of cash to survive and scale up. The start-up lets people share text, photos, and videos, and includes the ability to readily share text, pictures, and videos posted by one’s friends. If that start-up can be accused of abetting copyright infringement on a massive scale, or must police its content like a traditional publishing house lest it face damages claims or an injunction, your hundred-million-dollar investment might simply vanish to plaintiffs’ lawyers in damages and fees. An injunction might stop the site from continuing without extensive human monitoring that could not be justified by potential revenues. Because of the insulation brought by US law reforms in the 1990s, American start-ups did not fear a mortal legal blow. The legal privileges granted to Internet enterprises in the United States helped start-ups bridge the valley of death.

YouTube was sold to Google for $1.65 billion in stock in 2006. Karim, his co-founders, and main financial backer, Sequoia Capital, reaped an enormous windfall. Karim got Google shares worth $64 million at the time, while co-founder Chad Hurley earned $470 million in shares, and co-founder Steven Chen reaped $326 million in stock.

David Kravets
The senior editor for Ars Technica. Founder of TYDN fake news site. Technologist. Political scientist. Humorist. Dad of two boys. Been doing journalism for so long I remember manual typewriters with real paper. Emaildavid.kravets@arstechnica.com//Twitter@dmkravets